Tuesday, November 18, 2008

Google Giveth ... and Taketh Away

Some additions, amendments.

The agreement between Google and the AAP is of great significance for libraries. It is also very long, written in "legalese", and contains conclusions of a lengthy negotiation without revealing the nature of the discussion. Given that many lawyers were involved, we may never get the back story of this historic settlement, yet it has the potential to change the landscape on rights, digitization, and libraries.

I am basing much of my analysis on the summary of the agreement produced by ARL. This unfortunately means that some errors may be introduced between their summary and my interpretation. I have gone to the original document to check some particulars, such as definitions, but much of that document goes unread for now.

Key Points

(... or, a summary of the summary)

The agreement is primarily about books that are presumed to be in copyright but which are no longer in print. In-print books continue to be managed directly by the rights holders, who can make agreements with Google (or anyone else) for uses of those items.

The agreement has some odd limitations that baffle me: it only covers books published in the US that have been registered with the Copyright Office. It does not include any books published after January 5, 2009 .The settlement does cover non-US books (e.g. Berne countries); I'm still unclear on the statement about registration for US books, but it was cited in the ARL document.

The agreement trades off Google's liability with payment to rights holders. That is, as long as Google requires payment from users to displays and copies, and passes 2/3 of those monies to the rights holder, Google is exempt from copyright infringement claims by rights owners. So users of the digital files will pay to keep Google legal.

The agreement does not answer the all-important question of whether scanning for the purposes of searching is an allowed use under copyright law.

The agreement flaunts the concept of Fair Use by quantifying the amount of an in-copyright book that users can view for free ("20% of the text," "five adjacent pages," but not the final 5% of a fiction book, to keep the endings a surprise.) The ARL document has Google saying that it will not interfere with fair use. I can't find that statement in the actual settlement. These quantities are contractual, and I'm assuming that that technology will not allow users to exert fair use rights, only the contractual agreement.

Google will sell digital copies of in-copyright books to users, who will have perpetual access to the book online. Some printing will be allowed but all printed pages will have a watermark that identifies the user. (I'm calling this "ratwear," software that rats you out.) Users will be able to make notes on the book's pages, but they will only be able to share those notes with other purchasers of the book. (Thus buying a Google book is like joining a secret reading club.) The settle states that the watermark will identifier either the user, or other information "which could be used to identify the authorized user that printed the material or the access point from which the material was printed." Agreement, p. 47

Key Points Relating to Libraries

This is the hard part for me. Hard in that it really hurts.

After digitizing books held in libraries, Google will then turn around and become a library vendor, supplying those same books back to libraries under Google's control. Each public library in the US will get a single "terminal" provided (and presumably controlled) by Google that allows users to view (but not copy and paste from) books in the Google database. Some printing is allowed, but there will be a per-page fee charged.

Libraries and institutions can also subscribe to all or part of the database of out of print books. Access is not perpetual, but limited to the life of the subscription.

There is verbiage about how users in these institutions can share their "annotations." In other words, if you take notes on your own, obviously those are yours. But if you use the capabilities of the system to make your notes in the system, you cannot share your own notes freely.

Now for the Clincher

... this is the pact with the devil.

A library can partner with Google for digitization of its collection and get the same release from liability that Google has. The library can keep copies of these digitized books, however, it must follow security standards set by Google and the AAP and must submit its security plan for review and allow yearly auditing. (The security measures are formidable and quite possibly not affordable for all but the wealthiest institutions. There are huge penalties up to millions of dollars for not getting security right.)

Libraries that make this pact with the devil are thereby allowed to preserve the files, print replacement copies for deteriorating books, and provide access for people with disabilities. Note that all of these uses by libraries are already allowed by copyright law.

The libraries that make this pact with the devil cannot let their users read the digitized books. Well, they can let them read up to five (5!) pages in any digitized book. Presumably if the library wants to provide other uses it must subscribe to Google's service. Libraries are expressly forbidden from using their copies of the books for interlibrary loan, e-reserves, or in course management systems.

... and if you refuse to negotiate with the devil...

Current Google library partners who do not choose to become party to this must delete all copies of digitizations of in-copyright works made by the Google project in order to obtain a release from liability. If they choose not to delete the copies, they are on their own in terms of liability for the in-copyright books that Google did digitize (and Google knows exactly which books are involved.)

Even if the library was only allowing Google to digitize public domain works, those libraries must destroy all of their copies to get release from liability in case they mis-judged the copyright status of one of the those books.

In other words, this agreement is making the assumption that if anyone sues Google for copyright infringement, the library will be a party to that suit.

They say that "the devil is in the details." In this case that is not true: the devil is right up front, in the main message. That message is that Google has agreed with the publishers, and is selling out the libraries that is has been working with. The deal that Google and the libraries had was that in exchange for working with Google to digitize books in their collections, the libraries received a copy of the digital file. After that, it was up to the libraries to do the right thing based on their understanding of copyright law. Participating with Google has been an expensive proposition for the libraries in terms of their own staff time and in the development of digital storage facilities. Part of the appeal of working with Google was the assumption that partnering with the search giant gve the entire project clout and provided some protection for the libraries. With Google and the AAP now in cahoots, the libraries must join them or try to stand alone in an unclear legal situation; an unclear situation that Google invited the libraries into in the first place.

This is classic bait and switch. And it is bait and switch with powerful commercial interests against public institutions. There is no question about it...

THIS IS EVIL

Note: I've added more comment and info in the comments area as things pop up. So read on....

5 comments:

Libraries that sign that 'pact with the devil' get a release from reliabilty, and agree to abide by certain standards _with the digitized copies they get from google_. They very signficantly do NOT give up any rights at all with any other digitized copies, that they digitize themselves, or that they get in any other way.

Now, they don't get a release from liability with those copies, fine. But, what, you want Google and the publisher's to give you a release form liability for free?

The agreement _could_ have said libraries, in order to be partners, would agree to abide by those standards _with everything_. It doesn't, it limits it just to copies you get from Google.

The agreement also _could_ have tried to get libraries, in order to become partners with all the benefits (including release from liability) to agree to limit their fair use rights or other rights to non-copyrighted material. It doesn't. It specifically says it doesn't limit fair use rights in any way (unlike another vendor we know).

So, sure, it could be better. We would have _liked_ Google to try to use it's enormous power to try (and hopefully succeed, but it's hardly guaranteed) to set new precedents giving everyone all sorts of rights. That would have been nice, but they didn't. And I'm not sure it's appropriate to think they owed that to us.

They decided to make a deal with the publishers. They decided it was in their interests. Maybe it's because I start assuming that Google will do what's in their interests (and not try to save the world) that I found myself pleasantly surprised by the agreement--it does plenty of things that are not in Google's immediate interests, it is careful to _preserve_ certain rights for libraries, even partner libraries, that didn't matter to Google, they clearly _were_ thinking about partner libarary's interests.

So Google decided to make a deal. They got a reasonably good deal. If you don't like it, you don't need to participate, or better yet, you can still participate, but go do OTHER things without google, get digital copies from other places, and the 'deal with the devil' doesn't restrict what you can do with those at all.

I think it's pretty fair. Now, if libraries who originally entered into partnerships with Google thought that they'd be getting more, well, we've talked before about how those libraries didn't really pay attention to ANY of the details, they just assumed that anything involving Google would HAVE to be good for them, which was a pretty bad way to enter into a business arrangement. If they didn't realize that there were legal uncertainties in Google's business model for digitized books, such that the landscape could change, and if they didn't insist on certain things in the Google agreement to protect those future contingencies---that's on them.

But even if they had insisted, they could have gotten no more than this. Google couldn't have promissed that publisher's would release libraries from liability. That's beyond Google's ability to promise. I guess Google could have tried to fight for the right to keep giving libraries digital copies _without_ libraries signing the agreement, and consequently of course with no release of liability for libraries. I guess we didn't get that, but I'm not sure that's reasonable to expect.

"The agreement _could_ have said libraries, in order to be partners, would agree to abide by those standards _with everything_. It doesn't, it limits it just to copies you get from Google. "

I don't see how AAP and Google can define the libraries' legal rights. They aren't the government; they can't create or interpret law for others. They shouldn't even be able to make deals relating to libraries -- they should have to deal with the libraries in order to make deals about library activities. I can't see any evidence that the libraries were involved in this agreement, so I don't see how they could be bound by this agreement.

You also seem to forget that Google already has contracts with the libraries that are contradicted by this agreement. So somehow Google and AAP are making a deal that changes the *contracts* that Google has with the libraries? How could that be?

You are handing over waaaay too much power to G/AAP, IMO.

And although it "says" it doesn't limit fair use rights, it actually DOES limit fair use rights. It's right there in the text: "5%" "10%" "only 5 pages." Those are all limits on fair use.

The big problem, however, is that the real liability that the libraries have is much less than the real liability that Google has. Libraries have section 108; state funded libraries already have limits on liability relating to copyright. So what I see is Google is using its liability as a for-profit to try to bully libraries, which it invited to "play," into limiting their own behavior. Google should make its deal with AAP and leave the libraries out of it. I hope the current Google libraries all refuse to participate. And I doubt if many would want to join up with Google under these conditions.

I would be interested in your reading of the security requirements. As summarized in the ARL document, they struck me as very expensive.

"Notwithstanding anything to the contrary in this SettlementAgreement, no Fully Participating Library, Cooperating Library or Public DomainLibrary is bound by any provision of this Settlement Agreement; rather, each FullyParticipating Library’s, Cooperating Library’s and Public Domain Library’s rights andobligations are as set forth in the applicable Library-Registry Agreement and no libraryhas any rights or obligations as a third-party beneficiary under this Settlement Agreementunless and until it enters into a Library-Registry Agreement and becomes a FullyParticipating Library or a Cooperating Library."

It seems obvious, but my statement about Google and AAP "changing" the contracts that Google has with the libraries should be more like: they've agreed on a contract that Google and AAP can offer to libraries.

I still don't know what happens to the current contracts. Looking at the UC contract, the term of the contract is 6 years, and I read it that the contract can be terminated only for breach of contract. I don't know if Google is breaching the contract in this negotiation with AAP, but I don't see anything that would lead to that conclusion.

Appendix G has a list of libraries currently participating with Google, called "Approved Libraries." Section 7.1 of the full document says that these are libraries that are approved to become Fully Participating Libraries and Cooperating Libraries once they sign the relevant agreement. Presumably any library could enter into the agreement, so I'm still not sure what "approved" means. It seems more like these are target libraries that need to change their agreement with Google or face copyright challenges.

Google and the AAP could have tried to restrict libary's legal rights by offering them a contract that would restrict them. They could have offered libraries a contract saying "you get to keep your Google digital copies and you get a release from liability only if you agree to do X, Y, and Z", where X,Y and Z were further restrictions on what could be done with digitized books even those that did not come from Google.

After all, Google just agreed to certain restrictions as part of the settlement--with any and all digitized books they have. The settlement could have said that if libraries wanted to be involved at all--keeping Google copies and getting the 'safe harbor' release from liability, they had to agree to the same conditions _on all digitized books they had_, just like Google did.

[Of course, the settlement couldn't have superseded any existing agrements libraries had with Google, but could have done the above only if existing agreements allowed it, or said that such would take effect only after existing agreements expired. The existing agreements are secret, but it would not surprise me if they are loose enough to allow such a thing immediately.]

People make contracts to limit their actions beyond what the law already does all the time. This is the nature of a contract. They certainly legally could have tried that. They didn't. The settlement says that libraries can choose to participate only by agreeing to those limits with the books they get from Google, not with all books they digitize. Most of the vendors I am used to would have tried to reach further than that. This settlement doesn't.

Maybe if they had tried, it would have raised such an outcry that no libraries would have chosen to partner, bad press for all. Maybe they chose not to do it based on that calculation. But for whatever reason, they chose not to do it, and it's for the better.

If libraries thought when they partnered with Google they would make sure their patrons had perpetual access to the full text digitized copies for free forever--they should have tried to negotiate that in the agreement. As we know (or guess, not seeing the secret agreements), most libraries didn't even get the right to _any_ access in their agreements.

And yes, I agree that the security provisions are very expensive and tricky to implement--especially knowing the state of most university library's IT acumen, resources, and staff, which are--not much.

If I were a library director, I'd be very careful about entering into an agreement due to the security requirements. And I'd be consulting closely with counsel to determine the extent of our liability if we were to have a 'security' breach due to incompetence, not intention. And plan for exactly how we'd handle it when such a breach was brought to our attention by the AAP.

But I'm not sure most directors realize the lack of competence and under-staffing of their own IT shops.